State v. Stout

31 Mo. 406

Opinion

Napton, Judge,

delivered the opinion of the court.

The refusal of the court to give the third instruction asked by the defendant, taken in connection with the seventh given for the State, had a tendency to withdraw from the jury altogether the question of self-defence. It is not usual for a court to point out a particular witness and tell the jury to disregard his testimony, if they think he has testified falsely in any material particular; and when this is done, and all instructions upon the defence which this witness’ testimony tends to establish are refused, the jury must understand the court to be of opinion that no case of self-defence is made out; in other words, that the testimony of the suspected witness.is entirely unworthy of credit. This conclusion may be correct, but it is the province of the jury, and not of the court, to pass upon the credibility of witnesses.

Judgment reversed and case remanded;

Judge Ewing concurs. Judge Scott absent.